SPITBULL

Wednesday, January 21, 2004

OF FEES AND PORK, PART I

It's been a while since I threw any bones to the blawggers in the audience, so I thought I'd share a couple of judicial opinions that caught my attention recently. Let the gnawing commence.

The first concerns a suit by Verizon Wireless against a small suburban city named Mequon. The city denied Verizon a permit to construct a cellphone antenna, and Verizon challenged the denial under a provision of the Telecommunications Act of 1996 requiring that local zoning decisions of such ilk be "in writing and supported by substantial evidence contained in a written record." After concluding that the city did indeed lack such evidence, the court turned its attention to Verizon's request for attorney fees:

The general rule in America (the "American" rule, as it is known) is that the prevailing party, whether plaintiff or defendant, is not entitled to an award of attorneys' fees. Verizon wants us to hold that any time Congress creates a right that is enforceable against state or local officials or agencies, section 1983, and its companion, section 1988, come in the door and the American rule goes out the window. No such purpose can be attributed to Congress. Section 1988 codifies the Civil Rights Attorney's Fees Awards Act of 1976, enacted in recognition that civil rights suits normally pit individuals, often socially marginal, unpopular, and impecunious, against well-funded public officers in cases whose social and political significance may dwarf the monetary stakes, which may be meager. These circumstances argue for awarding attorneys' fees in such cases, especially to prevailing plaintiffs, and that tilt has been ratified in the judicial interpretation of section 1983. The Telecommunications Act, in contrast to the federal civil rights statutes, creates rights in telecommunications enterprises, which are usually substantial corporations, such as Verizon. They have the wherewithal to finance their own litigation without the boost given by fee-shifting statutes, and it would make no sense to carve an exception for cases in which they find themselves opposed not by other large corporations but by small towns, such as Mequon, population 21,000, with a planning commission some of whose members double as aldermen.

So who is this noble champion of the little guy against the big bad corporations? One of the many liberal judges on the oft-overturned Ninth Circuit? Or a judicial activist from a state high court--Massachusetts, perhaps, or Vermont, or Florida? Nope. It's Richard Posner.

Damn! He's really putting the crypto back in cryptofascism. Of course, I'm sure he's just trying to keep us off balance. Sneaky bastard.